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Published in the 1-15 May 2005 print edition of MG; send me the print edition


Women reservation

The Milli Gazette Online

I have read with great care Justice Rajindar Sachar’s article on the pending Women Reservation Bill in your latest issue (April 16-30, 2005) in which he has opposed the sub-quota for backward classes and minorities.

There is a clear contradiction in his stand. If reservation for women is advocated on the ground that women are under-represented in the legislatures, when they do not constitute a separate or distinct, social group, how can it be opposed, even within the women’s quota, for the under-represented groups which stand the risk of becoming more under-represented because of the shrinkage of electoral space?

There is also a flaw in his constitutional argument. The Women Reservation Bill already provides for sub-quotas for SC and ST women (from within the reserved quotas already available to the ‘SC’s and the ST’s). Perhaps Justice Sachar is aware of the fact that SC’s and ST’s were listed in the original draft of the Constitution alongwith religious minorities as minorities deserving of reservation in representation in legislatures which was approved by the Constituent Assembly. That this provision was reshaped during the second reading of the Constitution by Sardar Patel, at the ‘voluntary’ offer of a few Muslim members of the Assembly and the assurance by Pandit Nehru of ‘more that generous treatment for the minorities’. However, Article 15 was so drafted that the term ‘backward class’ also covered the minorities if they were also educationally and socially backward. It is on the basis that the Supreme Court’s historic Inder Sawhney judgement confirmed this possibility. It is also on this basis that the Venkatachalliah Commission stated that if a government had the political will, it could grant reservation for religious minorities within the existing terms of the Constitution, without amending it. 

I may also point, out with my meagre legal knowledge, the importance of the crucial word ‘only’ in Article 15(1) which opens the door of reservation for any social group such as caste and religion if it constitutes a backward class. That is why several States like Karnataka and Kerala have allowed sub-quotas for Muslims. Obviously the Constitution cannot have different meaning for different States!

What is at stake is not the fragmentation of legislature but universalization and equity of representation in accordance with the principle of equality and justice and the internationally approved regime of minority rights for representation in legislatures and other organs of governance.

The apprehension that elite women belonging to high castes or with family connection with the highly placed shall fill up the women quota to the exclusion of women belonging to the not so fortunate groups is not a red hearing nor an illusion; it is a real and substantial question. The alternatives suggested i.e. creating 1/3 more seats or forming double member constituencies are prima facie unconstitutional, because they divide the electorate into unequal and disparate parts, apart from their complicated operation.

On the whole, the Gill formula is the best and the simplest: amendment to the Representation of the People Act to make it mandatory for all recognized political parties to field 1/3 women candidates.

I would add that it should be made a condition of recognition for a political party that it should have adequate representation of women in its structure, from top to bottom. Thus all parties over the years shall have women with political experience to compete for party posts and party tickets on equal terms with male members, thus blocking the nepotist tendencies in party leaderships. This will lead to real empowerment of women: entry into the legislatures on equal terms with men.

Syed Shahabuddin

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